Evidence and disclosure - Disclosure and inspection

Learning Outcomes

This article explains disclosure and inspection in civil litigation under the Civil Procedure Rules (CPR), including:

• the purpose of disclosure and inspection and how they support fairness, case preparation, and settlement in civil proceedings;
• the meaning and practical scope of standard disclosure under CPR 31.6, including what must and need not be disclosed;
• the concepts of “document” and “control”, and how these apply to electronic and hard-copy material;
• the main categories of privilege—legal advice, litigation, and without prejudice privilege—and how privilege is asserted, challenged, and waived;
• core principles of electronic disclosure (e-disclosure), including search methodologies, legal holds, and proportionality;
• procedures for specific disclosure, pre-action disclosure, and non-party disclosure, and when exam scenarios are likely to engage each remedy;
• the continuing duty of disclosure and the limits of reasonable and proportionate searches;
• preparation and use of disclosure lists and disclosure statements, with emphasis on exam-style wording and common pitfalls;
• consequences of non-compliance, including evidential sanctions, costs orders, and contempt risks for false statements;
• the structure of the Business and Property Courts disclosure regime (Initial and Extended Disclosure, models A–E) and how it differs from the CPR Part 31 approach;
• techniques for applying these rules to SQE1 multiple-choice questions and practical problem-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the rules and procedures relating to disclosure and inspection of documents in civil litigation, including the extent of a party's disclosure obligations, the circumstances in which inspection of documents can be withheld, and the different types of privilege, with a focus on the following syllabus points:

• The meaning and scope of standard disclosure under CPR Part 31.
• The definition of 'document' and 'control' for disclosure purposes.
• The different types of privilege: legal advice privilege, litigation privilege, and without prejudice privilege.
• The concept of waiver of privilege.
• The basic requirements and challenges of electronic disclosure (e-disclosure).
• The procedures and grounds for specific disclosure, pre-action disclosure, and non-party disclosure.
• The purpose and requirements of disclosure lists and disclosure statements.
• The implications of the Disclosure Pilot Scheme (PD 51U) for relevant cases.
• The continuing duty of disclosure (CPR 31.11) and sanctions for non-compliance, including costs, evidential consequences, and contempt for false disclosure statements.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following documents would typically fall under the standard disclosure obligation in CPR 31.6?
   1. A draft witness statement prepared by a solicitor but not yet served.
   2. An internal company report analysing a potential product defect, created before any litigation was contemplated.
   3. An email from the client to their solicitor seeking legal advice on the dispute.
   4. A 'without prejudice' letter offering settlement terms sent between the parties' solicitors.
2. A party claims litigation privilege over an expert's report commissioned after proceedings began. What is the dominant purpose test relevant here?
   1. Was the report created for the sole purpose of obtaining legal advice?
   2. Was the report created for the dominant purpose of conducting the litigation?
   3. Was the report created for the dominant purpose of settling the dispute?
   4. Was the report created for the sole purpose of providing expert opinion to the court?
3. Under CPR Part 31, what constitutes 'control' of a document? (Select all that apply)
   1. Physical possession of the document.
   2. A right to inspect the document held by a third party.
   3. Having previously seen the document but no longer having access.
   4. A right to obtain a copy of the document.
4. When might a party apply for specific disclosure under CPR 31.12?
   1. When they believe the opponent's standard disclosure is inadequate.
   2. Before proceedings have started to assess the merits of a claim.
   3. To obtain documents from a person who is not a party to the proceedings.
   4. Only when the opponent has refused inspection of a disclosed document.

Introduction

Disclosure and inspection are critical stages in civil litigation, ensuring that parties have access to relevant evidence before trial. Governed primarily by CPR Part 31, these processes mandate the identification of relevant documents and allow for their examination by opposing parties, supporting the principle of fairness and enabling informed case assessment and potential settlement. Failure to comply with disclosure obligations can lead to significant sanctions. The overall approach is one of openness and proportionality: parties must cooperate to achieve the overriding objective, focus disclosure on what is truly relevant, and avoid unnecessary expense.

Key Term: Disclosure
Stating that a document exists or has existed (CPR 31.2).

Key Term: Inspection
A party's right to examine a document disclosed by another party (CPR 31.3).

Several different regimes operate depending on track and court. In the small claims track, there is usually no formal disclosure list—parties simply exchange the documents on which they intend to rely shortly before the hearing. In fast-track and most multi-track cases outside the Business and Property Courts, CPR Part 31 and its Practice Directions apply. For cases in the Business and Property Courts, a distinct disclosure regime applies (see below under “Disclosure Pilot Scheme”), which emphasises issues-based disclosure and tailored models.

Disclosure is a continuing duty: if documents come to light after service of the list, supplemental disclosure must be given promptly. Equally important is the duty to preserve potentially relevant documents from the outset of a dispute. Parties and their lawyers should take steps (sometimes called a “legal hold”) to prevent destruction or alteration of relevant paper and electronic evidence.

Standard Disclosure

Unless the court orders otherwise, parties in fast-track and multi-track claims must give standard disclosure. This is the default position.

Key Term: Standard Disclosure
The duty under CPR 31.6 requiring a party to disclose: (a) the documents on which they rely; and (b) the documents which adversely affect their own case, adversely affect another party's case, or support another party's case; and (c) documents required by a relevant practice direction.

Standard disclosure involves two linked obligations:

• Identifying documents that fall within CPR 31.6, and
• Conducting a reasonable and proportionate search (CPR 31.7; PD 31A).

Disclosure is not a licence to go on a fishing expedition. The scope is limited to the issues in dispute. Parties should not disclose documents relating only to agreed matters, and they should keep the process proportionate to the value, complexity, and importance of the case.

What is a Document?

The definition is broad, encompassing anything in which information is recorded (CPR 31.4). This includes paper documents, electronic documents (emails, databases, word files), audio/video recordings, photographs, and metadata. “Document” also captures drafts, versions, tracked changes, and comments if they record different information. Electronic artefacts such as audit trails or embedded data (e.g., document properties showing authorship and timing) can be material.

Key Term: Document
Anything in which information of any description is recorded (CPR 31.4).

Practical examples include:

• Emails and their attachments, chat messages, text messages, instant messaging threads on business accounts, and voicemail transcriptions.
• Cloud-stored materials (e.g., shared platforms such as SharePoint, Google Drive), backups where retrieval is reasonable, and portable media (USB, DVD).
• Photographs, site inspection videos, CCTV clips, CAD files, and spreadsheets with hidden tabs.
• Models or objects containing recorded information (e.g., technical models used in engineering disputes).

Courts focus on the content and relevance, not the medium. Deleting a digital file does not necessarily remove it from scope if it can still reasonably be retrieved.

What is Control?

The duty to disclose applies only to documents that are or have been in a party's control (CPR 31.8). Control is wider than mere possession and covers the legal right to possession or to obtain copies.

Key Term: Control
A party has or has had control of a document if: (a) it is or was in their physical possession; (b) they have or have had a right to possession of it; or (c) they have or have had a right to inspect or take copies of it (CPR 31.8(2)).

Examples and nuances:

• Group structures: A company may have a right to obtain copies of documents from a parent, subsidiary, or joint venture partner under a contract or policy—which can amount to control even without current physical possession.
• Agents and third-party custodians: Documents held by an agent (e.g., external IT provider, outsourced HR, document management vendor) can be under a party’s control if there is a right to obtain them.
• Former control: If documents were in a party’s control but no longer are, the party must disclose this fact and explain what happened (e.g., destroyed per retention policy, lost, or transferred).

The Duty to Search

Parties must conduct a reasonable and proportionate search for documents falling within standard disclosure (CPR 31.7). Reasonableness is fact-specific and depends on:

• The number of documents involved.
• The nature and complexity of the proceedings.
• The ease and expense of retrieval.
• The significance of any likely documents.

PD 31A provides guidance on tailoring searches. Reasonable limits may include:

• Focusing on relevant time ranges tied to alleged events.
• Limiting searches to specific custodians (e.g., key individuals).
• Restricting to relevant locations (e.g., shared drives, project folders) while excluding unrelated archives.
• Using search terms or date filters for electronic collections.
• De-duplicating near-identical documents.

If a party limits the search, the disclosure statement must specify the limits and why they are reasonable. Parties should discuss scope with opponents, particularly for electronic data, to narrow issues and reduce costs.

The duty of disclosure is ongoing (CPR 31.11). If new documents are found after exchange, the party must disclose them promptly by serving a supplemental list and, if appropriate, offering inspection. There is also a corresponding duty to take reasonable steps to preserve relevant documents once a dispute is on the horizon.

Electronic Disclosure (E-Disclosure)

The prevalence of electronic documents presents specific challenges. PD 31B provides guidance. Parties are expected to cooperate early on to agree on the scope of e-disclosure, including keywords, date ranges, and technology use, to manage the volume and cost effectively. In larger or more complex cases, it can be helpful to exchange an Electronic Documents Questionnaire to ensure clarity about systems, data sources, and proposed methods.

Key Term: E-disclosure
Disclosure relating to electronic documents, including emails, electronic files, databases, and metadata.

Key principles (PD 31B):

• Manage electronic documents efficiently to minimise cost.
• Use appropriate technology (e.g., de-duplication, keyword filtering, sampling) to search and review effectively.
• Preserve relevant data; suspend routine deletion processes (“legal hold”) where necessary.
• Provide documents in a usable form that allows equivalent access for the receiving party. For instance, native format may be appropriate to preserve functionality or metadata; where PDFs are used, ensure searchable text and necessary metadata are provided or agreed.

Topics for early discussion (typically before the first case management conference):

• Electronic systems in use, data locations, devices, email archives, cloud repositories, messaging platforms (and BYOD issues).
• The scope of reasonable search, including custodians and date ranges.
• Tools and techniques: agreed keywords, iterative refinement, concept searching, analytics, de-duplication, threading (e.g., email chains), and data sampling.
• Identification and redaction of privileged or irrelevant material; handling inadvertent disclosure.
• The format for production (native, near-native, or imaged with load files) and fields to be exchanged.
• Costs and proportionality; staged disclosure for particularly burdensome sources.

In multi-party or document-heavy cases, courts expect cooperation and a pragmatic approach that balances completeness with proportionality.

Withholding Inspection: Privilege

While a document may need to be disclosed (its existence stated), a party may have the right to withhold it from inspection if it is privileged. Privilege protects the confidentiality of certain communications. Privilege belongs to the client, not the lawyer. If inspection is withheld, the document should still be identified in the list (usually generically) with the basis of the claim to withhold.

Key Term: Privilege
A right allowing a party to withhold inspection of a document from another party or the court.

Two core forms of legal professional privilege are legal advice privilege and litigation privilege. In addition, the “without prejudice” rule protects genuine settlement discussions from being adduced as admissions.

Legal Advice Privilege (LAP)

This protects confidential communications between a lawyer and their client made for the dominant purpose of giving or receiving legal advice. It applies whether or not litigation is contemplated. The communication must be directly related to the lawyer's professional duties and the provision of legal advice, including advice as to what can prudently and sensibly be done in a legal context. The protection extends to the continuum of communications (e.g., instructions, follow-up queries, internal legal team notes reflecting client communications).

Key Term: Legal Advice Privilege (LAP)
Protects confidential communications between a lawyer and client made for the dominant purpose of giving or receiving legal advice.

Points to note:

• “Client” for corporate entities means those authorised to seek and receive legal advice; communications purely between non-legal employees will not be covered simply because they concern legal issues.
• In-house lawyers are “lawyers” for privilege purposes, provided they act in a legal capacity.
• LAP does not cover communications with third parties (e.g., accountants, consultants) unless litigation privilege applies.

Litigation Privilege (LP)

This protects confidential communications made for the dominant purpose of conducting litigation which is reasonably in prospect or already commenced. It can cover communications between:

• Lawyer and client.
• Lawyer and third party (e.g., an expert, factual witness).
• Client and third party.

The litigation must be a real likelihood, not just a remote possibility. The dominant purpose test focuses on the objective main purpose for which the document was created. Documents prepared for a mixture of purposes will be privileged only if the litigation purpose dominates.

Key Term: Litigation Privilege (LP)
Protects confidential communications made after litigation is contemplated or commenced, where the dominant purpose is to conduct that litigation (e.g., obtain information/advice or evidence).

Examples:

• Expert preliminary reports obtained to advise on liability once a claim is contemplated.
• Witness proofs and taken statements for use in the case.
• Communications with third parties to gather evidence for the litigation.

Summary: LAP vs LP

Without Prejudice Privilege

This protects communications (written or oral) made in a genuine attempt to settle a dispute. The aim is to encourage parties to negotiate freely without fear that concessions made will be used against them in court if settlement fails. The “without prejudice” label is helpful but not decisive; the substance matters. Documents marked “without prejudice save as to costs” may be shown to the court after judgment to determine costs.

Key Term: Without Prejudice Privilege
Protects communications made in a genuine attempt to settle a dispute from being put before the court as evidence of admissions.

Limited exceptions exist (applied narrowly), such as:

• To show that a concluded settlement agreement was reached or to interpret its terms.
• To explain delay (e.g., for limitation) or to rebut a contention of undue delay.
• Where the protection is abused (e.g., unambiguous impropriety).

Waiver of Privilege

Privilege belongs to the client and can be waived by them, either expressly or impliedly. Serving a privileged document (e.g., a witness statement or expert report) generally waives privilege in that material. Waiver can be limited (e.g., disclosing a privileged document for a specific purpose without wider waiver), but caution is required because partial or selective disclosure can lead to broader waiver.

Inadvertent disclosure of a privileged document may sometimes be rectified. If an obviously privileged document is mistakenly supplied, the receiving party should not use it without the court’s permission (CPR 31.20). The court assesses whether there was an “obvious mistake” and considers the interests of justice.

Key Term: Waiver
The loss of the right to claim privilege, often by voluntarily disclosing the privileged communication or referring to it in open court or documents.

Privilege must be properly particularised in the disclosure list. If challenged, the court can review the claim to privilege and, in appropriate cases, inspect documents or decide the matter on evidence and submissions. There is also a separate public interest immunity doctrine, by which inspection may be withheld if disclosure would harm the public interest (e.g., national security).

Disclosure Procedure

The Disclosure List

Parties giving standard disclosure must serve a list of documents (Form N265). The list is divided into three parts:

1. Documents within the party's control which they do not object to inspecting.
2. Documents within the party's control for which they claim a right to withhold inspection (e.g., privileged documents). These are usually described generically.
3. Documents which were previously in the party's control but are no longer. The list must state what happened to these documents.

The list should identify documents conveniently and concisely, typically in date order with consecutive numbering and short descriptions. For large homogenous sets, categories can be used (“Bank statements for Account X, Jan 2020–Dec 2021”).

Key Term: Disclosure List
A formal list (Form N265) served by a party identifying the documents required to be disclosed under a court order.

The Disclosure Statement

The disclosure list must include a disclosure statement, signed by the party (or an appropriate person if a company), certifying:

• The extent of the search conducted.
• That the party understands the duty of disclosure.
• That, to the best of their knowledge, they have carried out that duty.

A false statement can lead to contempt of court proceedings (CPR 31.23). The signatory should be someone with sufficient knowledge and authority to speak to the search undertaken.

Key Term: Disclosure Statement
A statement within the Disclosure List confirming the extent of the search undertaken and certifying understanding and compliance with the duty of disclosure.

Inspection

A party receiving a disclosure list has the right to inspect the documents listed in Part 1 (CPR 31.3). They must give written notice of their wish to inspect, and the disclosing party must permit inspection within 7 days (usually by providing copies). Parties should agree practical arrangements and formats, particularly for electronic documents.

Inspection may be refused for Part 2 (privileged) documents and cannot be given for Part 3 documents that are no longer within control. If a party contends that inspection would be disproportionate for certain categories (CPR 31.3(2)), this should be recorded and, if disputed, addressed by the court.

Redaction

Parts of a disclosable document may be redacted (obscured) if those parts are irrelevant to the issues in dispute or are privileged, while the rest of the document is disclosed and inspected. Redactions should be apparent on the face of the copy, and it is good practice to identify the basis for redaction (e.g., in a redaction log) to avoid satellite disputes.

Key Term: Redaction
The process of obscuring parts of a document before disclosure or inspection, typically because those parts are irrelevant or privileged.

Compliance, Continuing Duty, and Sanctions

The duty of disclosure continues until proceedings conclude (CPR 31.11). Failure to disclose a document or permit inspection can have significant consequences:

• The party may be prevented from relying on undisclosed documents without the court’s permission (CPR 31.21).
• The court may draw adverse inferences against a party who fails to disclose relevant material.
• Costs sanctions can be imposed for non-compliance or unreasonable conduct in disclosure.
• Knowingly making a false disclosure statement exposes the signatory to contempt proceedings.

Courts expect parties and lawyers to cooperate to narrow scope, reduce burden, and maintain proportionality. Ethical duties include not misleading the court and ensuring clients understand their disclosure obligations.

Orders for Disclosure Beyond Standard Disclosure

Specific Disclosure

If a party believes another party's disclosure under an order (e.g., standard disclosure) has been inadequate, they can apply to the court for an order for specific disclosure (CPR 31.12). The application must specify the documents or classes of documents sought or the search required. The court will only make the order if it is satisfied that it is necessary for disposing fairly of the claim or for saving costs. The usual approach is first to raise the issue in correspondence, identifying the perceived deficiencies and requesting compliance; an application should attach the relevant exchange and evidence.

Key Term: Specific Disclosure
A court order requiring a party to disclose documents beyond those required by standard disclosure, or to carry out a specific search (CPR 31.12).

Orders can require:

• Disclosure of specified documents or classes.
• A search to a stated extent.
• Disclosure of any documents located as a result.

In appropriate cases, the court may make “unless orders” (e.g., unless disclosure is given by a certain date, a statement of case is struck out) to enforce compliance.

Pre-Action Disclosure (PAD)

Before proceedings start, a person who appears likely to be a party can apply for disclosure from another likely party (CPR 31.16). The court may order PAD if:

• The respondent and applicant are likely to be parties to subsequent proceedings.
• The requested documents would fall within standard disclosure if proceedings had started.
• Disclosure before proceedings is desirable to:
  • Dispose fairly of the anticipated proceedings.
  • Assist the dispute to be resolved without proceedings.
  • Save costs.

Key Term: Pre-action Disclosure
Disclosure ordered before proceedings have commenced, typically to allow a potential claimant to assess the merits of a claim (CPR 31.16).

PAD is not a mechanism for broad information-gathering. The categories must be targeted and tied to likely issues. Costs orders are at the court’s discretion; often, the respondent’s reasonable costs of compliance will be addressed in the order, with ultimate costs usually being costs in the case if proceedings follow.

Non-Party Disclosure (NPD)

Once proceedings have started, a party can apply for disclosure from a person who is not a party to the proceedings (CPR 31.17). The court may order NPD if:

• The requested documents are likely to support the applicant's case or adversely affect another party's case.
• Disclosure is necessary to dispose fairly of the claim or save costs.

Key Term: Non-party Disclosure
Disclosure ordered against a person who is not a party to the proceedings (CPR 31.17).

As with PAD, the request must be focused and proportionate. The order should specify the documents or classes, require the respondent to identify any claimed privilege or loss of control, and set time and place for disclosure/inspection. The court can determine the costs of compliance.

Worked Example 1.1

Scenario: Your client, the Claimant, is suing the Defendant for breach of contract regarding allegedly defective goods. The Defendant's disclosure list (Part 1) omits any reference to internal quality control reports for the relevant batch of goods, which your client believes must exist and might support their claim.

Question: What step should your client consider taking?

Answer:
Your client should first write to the Defendant requesting disclosure of the specific quality control reports. If the Defendant refuses or fails to disclose them, your client should consider making an application to the court for an order for specific disclosure under CPR 31.12, providing evidence why these documents are believed to exist, are within the Defendant's control, and are relevant under the standard disclosure test.

Worked Example 1.2

Scenario: Your client is considering suing their former employer for unfair dismissal. Before issuing proceedings, they need access to their personnel file and internal emails relating to their dismissal to fully assess the strength of their potential claim. The employer has refused informal requests.

Question: What type of application might be appropriate?

Answer:
An application for pre-action disclosure under CPR 31.16 might be appropriate. Your client would need to satisfy the court that both parties are likely to be parties to subsequent proceedings, the documents would be subject to standard disclosure, and disclosure now is desirable to potentially resolve the dispute without proceedings or save costs.

Worked Example 1.3

Scenario: During litigation, your client discovers that an essential technical report relevant to the dispute is held by an independent engineering consultancy (who are not a party to the proceedings).

Question: How can your client obtain this report if the consultancy is unwilling to provide it voluntarily?

Answer:
Your client can apply to the court for an order for non-party disclosure against the engineering consultancy under CPR 31.17. They must demonstrate that the report is likely to support their case (or adversely affect the opponent's) and that its disclosure is necessary for fairly disposing of the claim or saving costs.

Worked Example 1.4

Scenario: You receive from the opponent a bundle of documents that appears to include a plainly privileged email from their client to their solicitor. It was not listed as privileged, and it arrived with the main inspection set.

Question: Can you use this document?

Answer:
Not without the court’s permission. This looks like an inadvertent disclosure of privileged material. Under CPR 31.20, if there has been an “obvious mistake,” the court may prevent use of the document. You should promptly notify the sender, cease review, and seek directions if necessary. The court will consider the nature of the mistake and the interests of justice.

Worked Example 1.5

Scenario: A UK subsidiary says it cannot disclose certain procurement emails because they are on the parent company’s servers overseas and the subsidiary has no possession of them.

Question: Are those emails within the subsidiary’s “control”?

Answer:
Possibly. Control includes a right to possession or to inspect/copy. If, under group policies or contractual arrangements, the subsidiary has a right to obtain copies from the parent, the documents are within its control for CPR 31 purposes and should be disclosed (subject to privilege and proportionality).

Worked Example 1.6

Scenario: A letter sent by the Defendant’s solicitor is not headed “without prejudice,” but it contains a genuine settlement proposal and admissions about weaknesses.

Question: Can you rely on the admissions at trial?

Answer:
No, not if the substance is a genuine attempt to settle. The “without prejudice” protection depends on substance, not the label. Such communications are privileged from being adduced as admissions, save for limited exceptions.

Worked Example 1.7

Scenario: In a document-heavy case, parties disagree about using broad keyword lists that would retrieve millions of emails, making review costs disproportionate.

Question: How should the court approach this?

Answer:
The court will expect cooperation to agree a reasonable and proportionate search (PD 31B). Techniques such as targeted custodians, narrower date ranges, iterative sampling, refined keywords, de-duplication, and threading should be considered. The overriding objective favours a staged and proportionate approach.

Worked Example 1.8

Scenario: A party fails to disclose relevant project minutes until the eve of trial, explaining that they were “overlooked.”

Question: What are the potential consequences?

Answer:
The court may impose costs sanctions, restrict reliance on the late-disclosed documents absent permission, and may draw adverse inferences. The continuing duty requires prompt supplemental disclosure; late disclosure without good reason risks robust case management responses.

Disclosure Pilot Scheme (PD 51U)

For cases proceeding in the Business and Property Courts, the Disclosure Pilot Scheme (PD 51U) largely replaces CPR Part 31. It aims to make disclosure more focused and proportionate. Note that the pilot’s approach has since been made permanent in the Business and Property Courts under a dedicated Practice Direction continuing the same core features (including Initial and Extended Disclosure and models A–E). Many materials still refer to the pilot nomenclature and structure.

Key Term: Disclosure Pilot Scheme
A mandatory disclosure regime operating in the Business and Property Courts (PD 51U), emphasising focused disclosure based on Issues for Disclosure rather than broad standard disclosure.

Key elements include:

• Initial Disclosure: Parties provide key documents relied upon with their statements of case, together with known adverse documents, capped by volume and proportionate limits. This is intended to orient the parties and the court to the dispute early.
• Issues for Disclosure: Parties must identify and, where possible, agree the main issues that require documentary evidence; disclosure is then managed by reference to these issues rather than a blanket approach.
• Extended Disclosure: If required, parties propose and the court orders one or more models (Model A to Model E) for specific Issues for Disclosure, ranging from no search-based disclosure to more expansive searches. The court applies reasonableness and proportionality to choose the right model(s).

Key Term: Initial Disclosure
Under the Disclosure Pilot Scheme, the requirement for parties to provide known adverse documents and key documents relied upon with their statements of case.

Key Term: Extended Disclosure
Under the Disclosure Pilot Scheme, disclosure beyond Initial Disclosure, ordered by the court based on agreed Issues for Disclosure and one of five disclosure models.

Extended Disclosure models (summary):

• Model A: Known adverse documents only (no search).
• Model B: Limited disclosure (documents relied on and necessary to understand the case, plus known adverse).
• Model C: Request-led, search-based disclosure—targeted categories requested by the other party.
• Model D: Narrow search-based disclosure similar to CPR 31 standard disclosure but limited to Issues for Disclosure.
• Model E: Wide search-based disclosure (exceptional), capturing train-of-enquiry documents and narrative where justified.

Other features:

• Disclosure Review Document (or equivalent): Captures the Issues for Disclosure, models sought, sources of documents, and proposals for searches and formats. It underpins the case management order.
• Duties of parties and legal representatives: Preserve documents, cooperate, act honestly, and ensure privilege claims are well-founded. Known adverse documents must always be disclosed.
• Sanctions: The court can vary or revoke orders, refuse disproportionate requests, and make robust costs orders to enforce compliance and incentivise reasonable behaviour.

Exam Warning

Be aware of which disclosure regime applies. Standard disclosure under CPR 31 remains the default for most County Court and High Court claims outside the Business and Property Courts. The Disclosure Pilot Scheme (PD 51U) has specific requirements and terminology (e.g., Initial Disclosure, Extended Disclosure, Issues for Disclosure, Models A-E) that you must understand if the question scenario indicates the case falls within its scope.

Key Point Checklist

This article has covered the following key knowledge points:

• Disclosure is stating a document exists; inspection is examining it.
• The duty applies to relevant documents within a party's 'control'.
• Standard disclosure covers documents relied on and adverse/supporting documents (CPR 31.6).
• A reasonable and proportionate search is required (CPR 31.7; PD 31A).
• The duty of disclosure is continuing; supplemental disclosure is required if new documents emerge (CPR 31.11).
• E-disclosure requires specific management due to volume and complexity (PD 31B), including preservation, agreed search parameters, and proportionate formats.
• Privilege allows withholding inspection (LAP, LP, Without Prejudice).
• Privilege can be waived, expressly or impliedly; inadvertent disclosure is governed by CPR 31.20.
• Disclosure lists (Form N265) and disclosure statements are required procedural steps; false statements risk contempt.
• Failure to disclose may prevent reliance on the document and may lead to adverse inferences and costs sanctions.
• Specific disclosure (CPR 31.12), pre-action disclosure (CPR 31.16), and non-party disclosure (CPR 31.17) are available via court application under specific conditions.
• The Disclosure Pilot Scheme (PD 51U) applies in the Business and Property Courts, focusing on Issues for Disclosure and tailored Extended Disclosure models, continuing under the permanent B&PC disclosure regime.

Key Terms and Concepts

• Disclosure
• Inspection
• Document
• Control
• Standard Disclosure
• E-disclosure
• Privilege
• Legal Advice Privilege (LAP)
• Litigation Privilege (LP)
• Without Prejudice Privilege
• Waiver
• Disclosure List
• Disclosure Statement
• Redaction
• Specific Disclosure
• Pre-action Disclosure
• Non-party Disclosure
• Disclosure Pilot Scheme
• Initial Disclosure
• Extended Disclosure